32 U.S. Code § 112 - Drug interdiction and counter-drug activities

(a) Funding Assistance.— The Secretary of Defense may provide funds to the Governor of a State who submits to the Secretary a State drug interdiction and counter-drug activities plan satisfying the requirements of subsection (c). Such funds shall be used for the following:

(1)The pay, allowances, clothing, subsistence, gratuities, travel, and related expenses, as authorized by State law, of personnel of the National Guard of that State used, while not in Federal service, for the purpose of drug interdiction and counter-drug activities.

(2)The operation and maintenance of the equipment and facilities of the National Guard of that State used for the purpose of drug interdiction and counter-drug activities.

(3)The procurement of services and equipment, and the leasing of equipment, for the National Guard of that State used for the purpose of drug interdiction and counter-drug activities. However, the use of such funds for the procurement of equipment may not exceed $5,000 per item, unless approval for procurement of equipment in excess of that amount is granted in advance by the Secretary of Defense.

(b) Use of Personnel Performing Full-Time National Guard Duty.—

(1)Under regulations prescribed by the Secretary of Defense, personnel of the National Guard of a State may, in accordance with the State drug interdiction and counter-drug activities plan referred to in subsection (c), be ordered to perform full-time National Guard duty under section
502(f) of this title for the purpose of carrying out drug interdiction and counter-drug activities.

(2)

(A)A member of the National Guard serving on full-time National Guard duty under orders authorized under paragraph (1) shall participate in the training required under section
502(a) of this title in addition to the duty performed for the purpose authorized under that paragraph. The pay, allowances, and other benefits of the member while participating in the training shall be the same as those to which the member is entitled while performing duty for the purpose of carrying out drug interdiction and counter-drug activities. The member is not entitled to additional pay, allowances, or other benefits for participation in training required under section
502(a)(1) of this title.

(B)Appropriations available for the Department of Defense for drug interdiction and counter-drug activities may be used for paying costs associated with a member’s participation in training described in subparagraph (A). The appropriation shall be reimbursed in full, out of appropriations available for paying those costs, for the amounts paid. Appropriations available for paying those costs shall be available for making the reimbursements.

(C)To ensure that the use of units and personnel of the National Guard of a State pursuant to a State drug interdiction and counter-drug activities plan does not degrade the training and readiness of such units and personnel, the following requirements shall apply in determining the drug interdiction and counter-drug activities that units and personnel of the National Guard of a State may perform:

(i)The performance of the activities may not adversely affect the quality of that training or otherwise interfere with the ability of a member or unit of the National Guard to perform the military functions of the member or unit.

(ii)National Guard personnel will not degrade their military skills as a result of performing the activities.

(iii)The performance of the activities will not result in a significant increase in the cost of training.

(iv)In the case of drug interdiction and counter-drug activities performed by a unit organized to serve as a unit, the activities will support valid unit training requirements.

(3)A unit or member of the National Guard of a State may be used, pursuant to a State drug interdiction and counter-drug activities plan approved by the Secretary of Defense under this section, to provide services or other assistance (other than air transportation) to an organization eligible to receive services under section
508 of this title if—

(A)the State drug interdiction and counter-drug activities plan specifically recognizes the organization as being eligible to receive the services or assistance;

(B)in the case of services, the performance of the services meets the requirements of paragraphs (1) and (2) of subsection (a) ofsection
508 of this title; and

(C)the services or assistance is authorized under subsection (b) or (c) of such section or in the State drug interdiction and counter-drug activities plan.

(1)specify how personnel of the National Guard of that State are to be used in drug interdiction and counter-drug activities;

(2)certify that those operations are to be conducted at a time when the personnel involved are not in Federal service;

(3)certify that participation by National Guard personnel in those operations is service in addition to training required under section
502 of this title;

(4)certify that any engineer-type activities (as defined by the Secretary of Defense) under the plan will be performed only by units and members of the National Guard;

(5)include a certification by the Attorney General of the State (or, in the case of a State with no position of Attorney General, a civilian official of the State equivalent to a State attorney general) that the use of the National Guard of the State for the activities proposed under the plan is authorized by, and is consistent with, State law; and

(6)certify that the Governor of the State or a civilian law enforcement official of the State designated by the Governor has determined that any activities included in the plan that are carried out in conjunction with Federal law enforcement agencies serve a State law enforcement purpose.

(d) Examination of Plan.—

(1)Before funds are provided to the Governor of a State under this section and before members of the National Guard of that State are ordered to full-time National Guard duty as authorized in subsection (b), the Secretary of Defense shall examine the adequacy of the plan submitted by the Governor under subsection (c). The plan as approved by the Secretary may provide for the use of personnel and equipment of the National Guard of that State to assist the Immigration and Naturalization Service in the transportation of aliens who have violated a Federal or State law prohibiting or regulating the possession, use, or distribution of a controlled substance.

(2)Except as provided in paragraph (3), the Secretary shall carry out paragraph (1) in consultation with the Director of National Drug Control Policy.

(3)Paragraph (2) shall not apply if—

(A)the Governor of a State submits a plan under subsection (c) that is substantially the same as a plan submitted for that State for a previous fiscal year; and

(B)pursuant to the plan submitted for a previous fiscal year, funds were provided to the State in accordance with subsection (a) or personnel of the National Guard of the State were ordered to perform full-time National Guard duty in accordance with subsection (b).

(e) End Strength Limitation.—

(1)Except as provided in paragraph (2), at the end of a fiscal year there may not be more than 4000 members of the National Guard—

(A)on full-time National Guard duty under section
502(f) of this title to perform drug interdiction or counter-drug activities pursuant to an order to duty; or

(B)on duty under State authority to perform drug interdiction or counter-drug activities pursuant to an order to duty with State pay and allowances being reimbursed with funds provided under subsection (a)(1).

(2)The Secretary of Defense may increase the end strength authorized under paragraph (1) by not more than 20 percent for any fiscal year if the Secretary determines that such an increase is necessary in the national security interests of the United States.

(f) Annual Report.— The Secretary of Defense shall submit to Congress an annual report regarding assistance provided and activities carried out under this section during the preceding fiscal year. The report shall include the following:

(1)The number of members of the National Guard excluded under subsection (e) [1] from the computation of end strengths.

(2)A description of the drug interdiction and counter-drug activities conducted under State drug interdiction and counter-drug activities plans referred to in subsection (c) with funds provided under this section.

(3)An accounting of the amount of funds provided to each State.

(4)A description of the effect on military training and readiness of using units and personnel of the National Guard to perform activities under the State drug interdiction and counter-drug activities plans.

(g) Statutory Construction.— Nothing in this section shall be construed as a limitation on the authority of any unit of the National Guard of a State, when such unit is not in Federal service, to perform law enforcement functions authorized to be performed by the National Guard by the laws of the State concerned.

(h) Definitions.— For purposes of this section:

(1)The term “drug interdiction and counter-drug activities”, with respect to the National Guard of a State, means the use of National Guard personnel in drug interdiction and counter-drug law enforcement activities, including drug demand reduction activities, authorized by the law of the State and requested by the Governor of the State.

(2)The term “Governor of a State” means, in the case of the District of Columbia, the Commanding General of the National Guard of the District of Columbia.

(3)The term “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States.

2004—Subsec. (e). Pub. L. 108–375, § 416(k)(1), (2), redesignatedsubsec. (f) as (e) and struck out heading and text of former subsec. (e). Text read as follows: “Members of the National Guard on active duty or full-time National Guard duty for the purposes of administering (or during fiscal year 1993 otherwise implementing) this section shall not be counted toward the annual end strength authorized for reserves on active duty in support of the reserve components of the armed forces or toward the strengths authorized in sections
12011 and
12012 of title
10.”

Subsec. (e)(1)(A), (B). Pub. L. 108–375, § 416(k)(3), struck out “for a period of more than 180 days” after “order to duty”.

Subsec. (a)(3). Pub. L. 105–261, § 1022(a), (e)(2), substituted “The procurement” for “the procurement” and “and equipment, and the leasing of equipment,” for “and leasing of equipment” and inserted at end “However, the use of such funds for the procurement of equipment may not exceed $5,000 per purchase order, unless approval for procurement of equipment in excess of that amount is granted in advance by the Secretary of Defense.”

Subsec. (b)(2). Pub. L. 105–261, § 1022(b), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “To ensure that the use of units and personnel of the National Guard of a State pursuant to a State drug interdiction and counter-drug activities plan is not detrimental to the training and readiness of such units and personnel, the requirements of section
2012(d) of title
10 shall apply in determining the drug interdiction and counter-drug activities that units and personnel of the National Guard of a State may perform.”

Subsec. (b)(3). Pub. L. 105–261, § 1022(c), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “Section
508 of this title, regarding the provision of assistance to certain specified youth and charitable organizations, shall apply in any case in which a unit or member of the National Guard of a State is proposed to be used pursuant to a State drug interdiction and counter-drug activities plan to provide to an organization specified in subsection (d) of such section any of the services described in subsection (b) of such section or services regarding counter-drug education.”

Subsec. (e). Pub. L. 105–85, § 1031(d), designated par. (1) as subsec. (e) and struck out par. (2) which read as follows: “The Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives an annual report specifying for the period covered by the report the number of members of the National Guard excluded under paragraph (1) from the computation of end strengths.”

Subsec. (d)(1). Pub. L. 104–208inserted at end “The plan as approved by the Secretary may provide for the use of personnel and equipment of the National Guard of that State to assist the Immigration and Naturalization Service in the transportation of aliens who have violated a Federal or State law prohibiting or regulating the possession, use, or distribution of a controlled substance.”

Pub. L. 104–106, § 1021(d)(1), inserted “and before members of the National Guard of that State are ordered to full-time National Guard duty as authorized in subsection (b)” after “under this section” and substituted “under subsection (c)” for “under subsection (b)”.

Subsec. (e)(2). Pub. L. 104–106, § 1021(h)(2), substituted “the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives” for “the Committees on Armed Services of the Senate and House of Representatives”.

Subsec. (h)(1). Pub. L. 104–106, § 1021(g), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “The term ‘counter-drug activities’ includes the use of National Guard personnel, while not in Federal service, in any law enforcement activities authorized by State and local law and requested by the Governor.”

“(a) Authority To Operate.—Under such regulations as the Secretary of Defense may prescribe, the Chief of the National Guard Bureau may establish and operate, or provide financial assistance to the States to establish and operate, not more than 5 schools (to be known generally as ‘National Guard counterdrug schools’).

“(b) Purpose.—The purpose of the National Guard counterdrug schools shall be the provision by the National Guard of training in drug interdiction and counterdrug activities and drug demand reduction activities to personnel of the following:

“(1) Federal agencies.

“(2) State, local, and tribal law enforcement agencies.

“(3) Community-based organizations engaged in such activities.

“(4) Other non-Federal governmental and private entities and organizations engaged in such activities.

“(c) Counterdrug Schools Specified.—The National Guard counterdrug schools operated under the authority in subsection (a) are as follows:

“(1) In general.—To the extent provided for in the State drug interdiction and counterdrug activities plan of a State in which a National Guard counterdrug school is located, personnel of the National Guard of that State who are ordered to perform full-time National Guard duty authorized under section 112(b) of that [sic] title 32, United States Code, may provide training referred to in subsection (b) at that school.

“(2) Definition.—In this subsection, the term ‘State drug interdiction and counterdrug activities plan’, in the case of a State, means the current plan submitted by the Governor of the State to the Secretary of Defense under section
112 of title
32, United States Code.

“(e) Treatment Under Authority To Provide Counterdrug Support.—The provisions of section 1004 of the National Defense Authorization Act for Fiscal Year 1991 (Public Law 101–510; 10 U.S.C. 374 note) shall apply to any activities of a National Guard counterdrug school under this section that are for an agency referred to in subsection (a) of such section
1004 and for a purpose set forth in subsection (b) of such section
1004.

“(f) Annual Report on Activities.—Not later than February 1 each year, the Secretary of Defense shall submit to Congress a report on the activities of the National Guard counterdrug schools during the preceding year. Each such report shall set forth a description of the activities of each National Guard counterdrug school for the fiscal year preceding the fiscal year during which the report is submitted, including—

“(1) the amount of funding made available and the appropriation account for each National Guard counterdrug school during such fiscal year;

“(2) the cumulative amount of funding made available for each National Guard counterdrug school during five fiscal years preceding such fiscal year;

“(3) a description of the curriculum and training used at each National Guard counterdrug school;

“(4) a description of how the activities conducted at each National Guard counterdrug school fulfilled Department of Defense counterdrug mission;

“(5) a list of the entities described in subsection (b) whose personnel received training at each National Guard counterdrug school; and

“(6) updates, if any, to the Department of Defense regulations prescribed under subsection (a).

“(g) Authorization of Appropriations.—

“(1) In general.—Not more than $30,000,000 may be expended by the Secretary of Defense for purposes of the National Guard counterdrug schools in any fiscal year.

“(2) Construction.—The amount expended pursuant to paragraph (1) for a fiscal year is in addition to any other amount authorized to be appropriated for the Department of Defense for the National Guard for such fiscal year.”

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